dissenting.
Because I do not agree that faEure to instruct the jury on reasonable doubt as required by this Court in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991) is reversible error per se, I must respectfuHy dissent to the holding of the majority.
After the police, pursuant to a search warrant, seized over 360 grams of cocaine from his residence, appeEant was charged with aggravated possession with intent to distribute cocaine. A jury subsequently convicted appeEant of this charge and sentenced him to thirty years in state prison and assessed a fíne of $40,000. The jury also found appellant used or exhibited a deadly weapon during the commission of the offense and an affirmative finding was included in the judgment of conviction. AppeEant’s conviction was affirmed by the Second Court of Appeals. Reyes v. State, 906 S.W.2d 256 (Tex.App.—Fort Worth 1995).
This Court granted appeEant’s petition for discretionary review to consider the foEowing two grounds:
1. Did the court of appeals err in ruling the trial court did not commit reversible error by failing to instruct the jury on reasonable doubt as required by this Court in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991)?
2. Did the court of appeals err in holding the evidence was sufficient to show appeEant used or exhibited a deadly weapon with intent to deHver cocaine?
The courts of appeals of this State that have had an opportunity to address the issue raised by appeEant’s first ground have reached conflicting conclusions. The Second Court of Appeals rejected, in the present case, appeEant’s contention that faEure to give the Geesa instruction on reasonable doubt required automatic reversal, relying on its opinion in Ahmadi v. State, 864 S.W.2d 776 (Tex.App.—Ft.Worth 1993) (pet. refused April 24, 1994).
In Ahmadi, the trial court’s instruction on reasonable doubt lacked the foEowing clause of the Geesa definition: “[Ujnless the jurors are satisfied beyond a reasonable doubt of the defendant’s guEt after careful and impartial consideration of aE the evidence in the case.” Whfle acknowledging this omission was undoubtedly error, the court of appeals, given the absence of an objection by Ahmadi, held, citing Tex.RApp.Proc. 81(b)(2), the error was not harmful and made no contribution to the conviction or punishment. The court, accordingly, rejected Ahmadi’s contention the error required automatic reversal. Ahmadi, supra, at 779. In the present case, the court of appeals found the faEure to give the Geesa instruction to be harmless error under Rule 81(b)(2), as weE as not egregious error under Almanza. Reyes, supra, at 258.
The First Court of Appeals considered the exact same error that occurred in Ahmadi, i.e., an instruction lacking the. clause described above, where there was no objection by the defendant, in Boozer v. State, 848 S.W.2d 368 (Tex.App.—Houston [1st Dist.] 1993). The court found the error was harmless and, in fact, was beneficial to appeEant. Boozer, supra, at 369. In other words, fafl-ure to give the Geesa instruction (or, presumably, giving an incomplete Geesa instruction) is error that is always preserved but that is subject to a harm analysis.
The Waco Court of Appeals, in Kieschnick v. State, 911 S.W.2d 156 (Tex.App.—Waco 1995) (op. on reh’g.), held that faEure to give the Geesa instruction (the jury charge in this case totaEy omitted the Geesa instruction) was automatic reversible error, even in the absence of any objection by the appeEant. Relying on Marin v. State, 851 S.W.2d 275, 279-280 (Tex.Crim.App.1993), the court of appeals held the right to the Geesa instruction on reasonable doubt is an absolute, systemic right not subject to waiver; therefore, every charge must contain it. Citing Stine v. *723State, 908 S.W.2d 429, 430 (Tex.Crim.App.1995), the court held that error — failure to give the Geesa instruction — was not subject to a harm analysis, and, therefore, reversal was mandated. Kieschnick, supra, at 163, 164.
The record, which is not disputed by the parties, demonstrates the trial court failed to give the Geesa instruction on reasonable doubt. Appellant did not object to this failure and, as neither party called this matter to the attention of the trial court, it appears the trial court simply forgot to give the instruction. Jury charge error, whether due to an erroneous or incomplete charge, is generally examined in light of the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (op. on rehearing).
Initially, it should be noted appellant’s assertion that an erroneous or incomplete jury charge is error requiring automatic reversal is not correct. In Abdnor v. State, 871 S.W.2d 726 (Tex.Crim.App.1994), we held:
An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction. Tex.Code Grim. Proc. Art. 36.19 prescribes the manner of appellate review for jury charge error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge; and second, the court must determine whether sufficient harm resulted from the error to require reversal. Id. See also, Gibson v. State, 726 S.W.2d 129, 132 (Tex.Crim.App.1987). The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected. Where there has been a timely objection made at trial, an appellate court will search only for “some harm.” By contrast, where the error is urged for the first time on appeal, a reviewing court will search for “egregious harm.” Almanza, supra at 171; Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986).
Abdnor, supra, at 732.
It is evident to me that failure to include the Geesa instruction in the jury charge is “charging error.” Charging error is reviewed according to the standards established by this Court in Almanza and by the Legislature in Tex.Code Crim.Proe. Art. 36.19.1 As the requirement to give the Geesa charge is not specifically based on statute, Almanza provides the appropriate standard of review.
Under Almanza, where no objection to the charge was made, as in the'present case, reversal is not appropriate unless the error claimed is so egregious as to have denied appellant a fair and impartial trial. Almanza, supra, at 172; Arline, supra, at 351-352. The degree of harmfulness of a charging error is determined by reviewing the entire record. Arline, supra, at 352. The record demonstrates that during final argument both parties referred to the State’s burden of proof as beyond a reasonable doubt. During both voir dire and final argument, the State told venirepersons and jurors that a “reasonable doubt” is one that would cause a reasonable person to hesitate to act. This definition has met the approval of the Supreme Court, Victor v. Nebraska, 511 U.S. at 20, 114 S.Ct. at 1250, and closely tracks the *724definition of “reasonable doubt” established by this Court in Geesa: “A reasonable doubt is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.” Geesa, supra, at 162. Thus, while the jury did not receive the written Geesa instruction on reasonable doubt, it was correctly informed of same as well as the State’s burden of proof by both the State and counsel for appellant. Given this, there simply is no evidence that the error was calculated to injure appellant, much less deprive him of a fair and impartial trial.
An examination of the jury charge also shows the jury was instructed correctly as to the State’s burden of proof, even in the absence of the Geesa instruction on reasonable doubt. The charge contains language that permitted the jury to convict appellant only if it found he committed all of the elements of the offense beyond a reasonable doubt. There is nothing in the record to indicate the jury did not understand the concepts of “reasonable doubt” or “burden of proof.” Furthermore, the application paragraphs instructed the jury that “no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.... In case you have a reasonable doubt as to the defendant’s guilt after considering all of the evidence before you, and these instructions, you will acquit him.” These application paragraphs did not mislead the jury so as to deny appellant a fair and impartial trial.
Accordingly, I would hold that failure to give the Geesa instruction on burden of proof and reasonable doubt constitutes “charge error” that, on appeal, is to be reviewed in light of the standards set forth by this Court in Almanza, supra. In the instant case, failure to give the Geesa instruction, while error, did not, in light of the charge given, cause “egregious harm” to appellant and did not deprive him of a fair and impartial trial. Accordingly, I would overrule appellant’s first ground for review and affirm the court of appeals’ disposition of this ground.2,3
. Appellant does not allege failure to give the Geesa instruction implicated any rights under the federal constitution; therefore, the harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) is not applicable to the present case. Additionally, the Supreme Court recently held the U.S. Constitution does not require state courts to give a jury instruction as to the definition of reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). Furthermore, Tex.Rule App.Proc. 81(b)(2) is not applicable to charging error as the Legislature enacted Article 36.19 prescribing the standard of review to be used with respect to charge errors that violate Articles 36.14 through 36.18, and Almanza prescribes the standard of review with respect to "non-statutory" charge errors. Finally, we do not agree that failure to give the Geesa instruction in the absence of any objection by the accused violates a constitutional or statutory mandate or other absolute systemic requirement, as contemplated in Marin, supra, at 279, so as to constitute automatic reversible error. This is not to minimize, however, the importance of giving the Geesa instruction: if a timely objection was made at trial to the failure to give it, I would hold that failure would constitute reversible error.
. Compare the instant case to Powell v. State, 897 S.W.2d 307, 316, 317 (Tex.Crim.App.1994). In Powell, appellant requested and received, at the punishment phase, instructions as to the special issues that omitted the statutorily-required "deliberateness” special issue under Art. 37.071 as in effect for offenses committed prior to September 1, 1991. We held that the effective dates of statutes are absolute requirements, nonwaiva-ble, and nonforfeitable; criminal defendants may not in Texas legislate the law to be applied in their case. Powell, supra, at 317, and reversed appellant's death sentence. In Powell, the wrong law was intentionally applied, whereas in the present case, a non-statutorily-mandated jury instruction was inadvertently omitted and there is nothing in the record below that either party requested said omission.
. The majority's disposition of appellant's first ground for review obviates the necessity of addressing his second ground for review as it has been effectively mooted.